Bringing the drone policy into the light (a little)

The United States’ use of unmanned drones in counter-terrorism strikes has produced a multifaceted debate, which does not fall cleanly along the usual left-right lines, especially when the targets are American citizens who’ve fled the country to become suspected terrorists. For some, all Americans, even those who’ve joined al Qaeda, are entitled to due process, and should not be summarily executed by the U.S. government.

For others, if there’s a war, and the nation is striking enemy combatants, whether an al Qaeda member is an American or not is immaterial. As Scott Lemieux noted the other day as an example, “[A]n American fighting for the Nazis on the battlefield would not have been entitled to due process.”

It’s obviously an issue worthy of debate, and I don’t think it’s an especially easy call. But even if we put aside for a moment this and related questions – whether drone strikes are effective in preventing terrorism, whether the weapons themselves should be used by intelligence agencies instead of the military – the far easier call is the one dealing with oversight, accountability, and checks and balances.

For the Obama administration, there’s no doubt that the use of drones in targeting suspected terrorists – whether they be American citizens or not – is entirely legal. Indeed, administration officials have said publicly that the matter has been thoroughly scrutinized and passes constitutional muster.

And while the accuracy of those conclusions is obviously important, that’s not quite what this week’s debate has been all about. Rather, what Rachel, Michael Isikoff, and others have focused on of late is why the administration hasn’t shared its legal findings with anyone outside the executive branch.

In other words, the administration strongly believes its drone policy is legally permissible, but it’s refused to tell anyone why.

As of last night, that position has changed, and the Obama administration will bring the legal rationale behind its drone policy into the light – but only a little.

With John Brennan, President Barack Obama’s nominee to lead the CIA, set to begin his confirmation hearings, the White House announced late yesterday that it will brief the House and Senate Intelligence Committees on the legal justifications for drone strikes against U.S. citizens who’ve become suspected terrorists.

“Today, as part of the president’s ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice White Paper,” the official said. […]

Sen. Dianne Feinstein, chairman of the Senate Select Committee on Intelligence, said in a statement Wednesday night she was pleased with the White House’s decision.

“I am pleased that the president has agreed to provide the Intelligence Committee with access to the OLC opinion regarding the use of lethal force in counterterrorism operations. It is critical for the committee’s oversight function to fully understand the legal basis for all intelligence and counterterrorism operations,” Feinstein’s statement read.

Again, maybe you think the drone policy is sound, maybe you think it’s abhorrent, but the central dispute here is whether the administration can keep secret its own internal legal reasoning for a controversial national security policy.

By any fair measure, that’s a position that’s nearly impossible to defend.

So why do I say the administration is only bringing the drone policy into the light “a little”? Because the new disclosure will provide information to select members of Congress – who have clearance to review classified materials – but no one else. Neither journalists nor members of the public will have access to the classified materials that outline the legal rationale.